Excerpt:jurisdiction of civil court - sale for arrears of revenue--revenue sale act (xi of 1859), section 33--sale for arrears not due--suit to set aside sale--appeal to commissioner. - .....28th of june, the 28th september, the 12th january and the 28th march. it would follow that as the march kist did not become in arrear until the 1st of april, the property could not be sold in respect of it unless default had continued until the 28th of june, which was the next fixed date after that instalment became in arrear.5. the whole difficulty has here risen in consequence of the zemindari account register being kept with reference both to the christian era and to the fusli era, which is prevalent in the district. that register gives the kists of amounts corresponding to those described in the revenue roll register, but the months when these kists are payable are differently described.6. an attempt was made by the learned vakil for the appellant to induce us to assimilate the.....

Judgment:

Trevelyan and Banerjee, JJ.

1. In this case the learned Subordinate Judge, from whose judgment the present appeal has been preferred, has set aside a sale purporting to be for arrears of Government revenue, on the ground that there were no arrears, and that, therefore, the Collector had no power to sell the property.

2. The first question which we have to determine is whether there were any arrears. If there were arrears, it would follow that the suit must fail. If there were no arrears, there remains the question whether, having regard to the fact that the absence of arrears was not declared and specified in an appeal to the Commissioner, the provisions of Section 33 of the Revenue Sale Law do not bar this suit.

3. With regard to the first question, we had at first some little difficulty in understanding the decision of the learned Subordinate Judge, but when we come to examine the evidence, we see no reason to differ from the conclusion at which he has arrived. There was a butwara of this property, and after partition the revenue and instalments of revenue were fixed by the Commissioner of Revenue. These instalments are shewn in Exhibit 1, which is a copy of an extract from the revenue roll register. The kists are there specified; the first of these being for April, Rs. 33-2-0, the last of these being the kist of March Rs. 16-9-0. By Section 2 of the Revenue Sale Law if the whole or any portion of a kist of any month of the era, according to which the settlement and kistbundi of any mehal have been regulated, be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue. We must take it that this register proves that the kistbundi was regulated according to the Christian era, and therefore the instalment for March did not become an arrear of revenue until the 1st of April.

4. Under Section 3 of the Revenue Sale Law the Board of Revenue has to determine upon what dates all arrears of revenue shall be paid up, in default of which payment these estates shall be sold. The dates which have been fixed are admittedly the 28th of June, the 28th September, the 12th January and the 28th March. It would follow that as the March kist did not become in arrear until the 1st of April, the property could not be sold in respect of it unless default had continued until the 28th of June, which was the next fixed date after that instalment became in arrear.

5. The whole difficulty has here risen in consequence of the zemindari account register being kept with reference both to the Christian era and to the Fusli era, which is prevalent in the district. That register gives the kists of amounts corresponding to those described in the revenue roll register, but the months when these kists are payable are differently described.

6. An attempt was made by the learned Vakil for the appellant to induce us to assimilate the month in the two registers, the effect of which would be to compel us to alter the amounts payable in respect of each kist. The sum total would, of course, be the same.

7. It is perfectly obvious, from a comparison of the two registers to which we have referred, that the course adopted by the officer who computed the zemindari account register has been to call the April kist, the kist for March or Cheyt; the May kist, the kist for April or Bysack; the June kist, the kist for May or Jeyt; the October kist, the kist for September or Assin; the November kist, the kist for October or Kartick; the December kist, the kist for November or Aughran; the January kist, the kist for December or Pous; the February kist, the kist for January or Magh; and lastly the March kist, the kist for February or Falgoon.

8. The inconvenience of mixing up the two eras is obvious, and its practical effect has been to anticipate the due date of the several kists.

9. The next document of importance is the memorandum of demands, which shows how the sum of Rs. 3-8-2, for the non-payment of which this property has been sold, has been arrived at. According to that document, that sum is the balance after crediting all sums paid up to and including the 28th of March 1894, and after debiting the kists due, up to and including the kist of Rs. 16-9 which is described in the zemindari account as the kist of February or Falgoon, but which is in reality, as we have pointed out, the kist for March. If this kist of Rs. 16-9, which was due in reality on the 1st of April, had been omitted from the account, there would have been a surplus instead of a deficit, and, therefore, we must hold that there were no arrears for which a sale could take place.

10. Our attention has been drawn to a decision of a Division Bench of this Court, in which we are told that the circumstances are similar; but the learned Judges arrived at a conclusion different to that at which we have arrived. We need hardly remark that a conclusion of fact in another case can be in no way a precedent, and can be of little, if any, help to us.

11. Having found as a fact that there were no arrears, we have still to consider the only remaining question, namely, whether, having regard to the fact that the absence of arrears was not declared as a ground of appeal to the Commissioner, the provisions of Section 33 of the Revenue Sale Law bar this suit.

12. There is no doubt that this question was authoritatively determined by a Full Bench of this Court in the case of Baijnath Sahu v. Lala Sital Prasad (1868) 2 B. L. R. (F. B.) 1; 10 W. R. (F. B.) 66 and has also been decided, in several other cases.

13. It has, however, been argued that the Judicial Committee of the Privy Council in Gobind Lal Roy v. Bamjanam Misser (1893) I.L.R. 21 Cal. 70; L. R. 20 I. A. 165 have expressed an opinion inconsistent with the decision of the Full Bench.

14. In our opinion their Lordships did not express any intention of travelling beyond the points which arose in the particular case.

15. In that case there were arrears of revenue, and the sale was for such arrears, but it was held good in spite of an express prohibition in the Act.

16. The decision of their Lordships is to be found in the following words:

Giving, however, full weight to these considerations, their Lordships, having regard to the scheme of the Act and the express direction contained in Section 33, are of opinion that in every case where a sale for arrears of revenue is impeached as being contrary to the provision of Act XI of 1859, no grounds of objection are open to the plaintiff which have not been declared and specified in an appeal to the Commissioner.

In the opinion of their Lordships a sale is a sale made under the Act XI of 1859 within the meaning of that Act, when it is a sale for arrears of Government revenue held by the Collector or other officer authorized to hold sales under the Act, although it may be contrary to the provisions of the Act either by reason of some irregularity in publishing or conducting the sale, or in consequence of some express provision for exemption having been directly contravened.

17. If there were no arrears, this was not a sale for arrears of revenue, and there is nothing in the decision of the Privy Council which can be in point in this case.

18. We dismiss the appeal with costs. No reference was made at the hearing to the cross-objection.